Abstract: Over five years have passed since the passage of the Trafficking Victims Protection Act (TVPA), more than two years have passed since its expansion and reauthorization, and millions of dollars have been spent to achieve the Act’s stated goals of protecting trafficking victims, prosecuting traffickers and preventing human trafficking. In spite of apparent widespread political support and seemingly ample funding, the TVPA’s success has been modest. Domestically, the number of cases prosecuted have been few and the number of trafficked workers in the U.S. who have been assisted by the program has been a small proportion of the estimated number of such workers in the U.S.

In order to understand why the TVPA has fallen short of its goals, the Act must be analyzed in the context of its legal antecedents: the labor, immigration and sex trafficking laws that existed prior to the TVPA and that form the bulk of the Act’s substantive provisions. This article demonstrates that long before the TVPA was enacted, legal and policy decisions were made in each of these three areas that continue to exacerbate the domestic manifestations of problem of human trafficking and the related exploitation of undocumented migrant workers.

Unfortunately, Congress did not systematically revisit these laws when passing the TVPA. In fact, the TVPA incorporates many provisions of these laws with only minor changes, and fails to address many of the perverse structural incentives that the laws create. Border interdiction strategies, restrictive and punitive immigration policies and insufficient labor protection for migrants interact in ways that leave exploited workers in the United States at the mercy of traffickers and abusive employers, notwithstanding the TVPA.

Furthermore, the narrow understanding of trafficking that dominates domestic TVPA enforcement efforts has created an over-emphasis on anti-prostitution efforts to the exclusion of broader issues of worker exploitation, and has also resulted in racially biased understanding and enforcement of anti-trafficking laws within the United States. Unfortunately, some of the worst impulses of U.S. anti-trafficking strategies have also been incorporated into the U.S. government’s international anti-trafficking strategies. In short, as currently enforced, the TVPA exacerbates many of the negative effects of pre-existing laws, even as it alleviates some of the political pressure to address human exploitation.